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Labeling Toothpaste Tubes as “Recyclable” Plausibly Misleading 

Posted by James Juo | Feb 13, 2024 | 0 Comments

False advertising may arise from claims regarding the recyclability of a product. In Smith v. Keurig Green Mountain, Inc., 393 F. Supp. 3d 837 (N.D. Cal. 2019), which the court found were sufficient to plausibly allege that a reasonable consumer would be misled by the defendant's claims of recyclability. In Smith, the defendant sold single-serve plastic coffee pods (“Pods”) that it labeled as “recyclable.” 393 F. Supp. 3d at 842. FAC ¶¶ 1–2. The plaintiffs alleged this was misleading because although the Pods were made from Polypropylene (#5) plastic, which was “a material currently accepted for recycling in approximately 61% of U.S. communities[,]” domestic municipal recycling facilities (“MRF”) did not accept the Pods due to their size (the recycling facilities were “not equipped to capture materials as small as the Pods and separate them from the general waste stream[ ]”) and the contamination risk the Pods posed. Id. Although the defendant included disclaimer language on the labels that the Pods were “‘[n]ot recyclable in all communities' and the directive for consumers to ‘check locally' to determine recyclability at their local MRF[,]” the court found that the plaintiff had adequately alleged that a reasonable consumer would be misled, highlighting the plaintiffs' allegation that the Pods “were not recyclable at all.” Id. at 846-847. The court found that neither the disclaimers nor common sense would “clearly lead a person to believe that a package labeled ‘recyclable' is not recyclable anywhere,” so the plaintiff's claims were plausibly alleged. Id. at 847.

Similarly, in Della v. Colgate-Palmolive Co., No. 23-cv-04086-JCS, 2024 WL 457798 (N.D. Cal. Feb. 6, 2024), Della alleged that statements on Colgate and Tom's of Maine toothpaste packaging about the recyclability of the toothpaste tubes were false and misleading because while it is theoretically possible to recycle the tubes, recycling facilities in California and the United States do not accept toothpaste tubes because of the processing concerns that they pose.

Colgate, on the other hand, contended that its “recyclable” claims were accurate and not misleading because the toothpaste tubes are made out of a type of plastic that is widely accepted by recycling facilities and therefore “intrinsically capable of being recycled.” (emphasis in original).

Colgate relied on Swartz v. Coca-Cola Co., No. 21-4643, 2022 WL 17881771 (N.D. Cal. Nov. 18, 2022) to argue that a reasonable consumer would not be misled by its claims of recyclability because technically, it is true that the Products are capable of being recycled. In Swartz, the plaintiffs asserted that the claim “100% recyclable” on the defendant's single-use plastic bottles was misleading because some “bottles end[ed] up in landfills or incinerators due to a lack of recycling capacity and a lack of demand for recycled plastic.” No. 21-CV-04643-JD, 2022 WL 17881771, at *1 (N.D. Cal. Nov. 18, 2022). The court found that these allegations failed to state a claim because “[n]o reasonable consumer would understand ‘100% recyclable' to mean that the entire product will always be recycled or that the product is ‘part of a circular plastics economy in which all bottles are recycled into new bottles to be used again.'” Id. (quoting plaintiffs' complaint).

In everyday usage, “recyclable” is an adjective that means capable of being recycled (e.g., “the plate is made of recyclable paper”), or a noun that denominates an object that can be recycled (e.g., “the students raised funds by selling recyclables to disposal facilities”). It does not mean a promise that an object will actually be recycled . . . . If anything, a reasonable consumer would understand that making an object recyclable is just the first step in the process of converting waste into reusable material, and not a guarantee that the process will be completed.

The court in Swartz also considered the FTC's Green Guides provision governing when an unqualified claim of recyclability may be made, namely, “if recycling facilities are available to at least 60% ‘of consumers or communities where the item is sold.' ” Id. at *2 (quoting 16 C.F.R. § 260.12(b)(1)).

The Della court distinguished Swartz in that the plaintiff Della did not allege that consumers would understand Colgate's package labeling to “guarantee” that the products will actually be recycled—rather, the plaintiff asserts that they are misleading because a reasonable consumer would not expect that the product is not accepted for recycling by any existing recycling program.

Thus, the Della court denied Colgate's motion to dismiss because the complaint had plausibly alleged that Colgate's labeling contained representations or omissions that would mislead reasonable consumers.


Thomas P. Howard, LLC is experienced in trademarks nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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